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CHAPTER THE TWELFTH.

of TRESPASS.

I N the two preceding chapters we have considered such 1 injuries to real property, as con Gisted in an ouster, or amotion of the possession. Those which remain to be discussed are such as may be offered to a man's real property without any amotion from it.

The second species therefore of real injuries, or wrongs that affect a man's lands, tenements, or hereditaments, is that of trespass. Trespass, in it's largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live; whether it relates to a man's person, or his property. Therefore beating another is a trespass; for which (as we have formerly seen) an action of trespass vi et arinis in assault and battery will lie ; taking or detaining a man's goods are respectively trespasses; for which an aciion of frespass vi et armis, or on the case in trover and conversion, is given by the law : fo also nonperformance of promises or undertakings in a trespass, upon which an action of trespass on the case in asumpsit is grounded: and, in general, any misfeasance or act of one man, whereby another is injuriously treated or damnified, is a transgression or trespass in it's largest senfe ; for which we have already seen that, whenever the act itself is directly, and immediately injurious to the person or property of another,

* See pag. 123.

and

and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought (1).

· But in the limited and confined senfe, in which we are at present to consider it, it signifies no more than an entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property in lands, being once establifhed, it follows as a necessary consequence, that this right must be exclusive ; that is, that the owner may re

(1) The distinctions between actions of trespass vi et armis for an immediate injury, and actions of trespass upon the case for a consequential damage, are frequently very delicate ; see the subject much considered in 2 Bl. Rep. 892, in a case where an action of trespass vi et armis was brought against the defendant for throwing a lighted squib in a public market, which fell upon a stall; the owner of which, to defend himself and his goods, took it up, and threw it to another part of the market, where it struck the plaintiff and put out his eye.

The question was much discussed, whether the person injured ought to have brought an action of trespass vi et armis, or an action upon the case; and one of the four judges ftrenuously contended that it ought to have been an action upon the case. But I should humbly conceive, that the question was more properly this, viz. whether an action of trespass vi et armis lay againft the ori. ginal or intermediate thrower, or whether the act of the second thrower was involuntary, (which seems to have been the opinion of the jury,) or wilful and mischievous, and therefore he alone ought to have been answerable for the consequences. For if A throws a stone at B, which after it lies quietly at his foot, B takes up and throws again at C, it is presumed that C has his action against B only; but if it is thrown at B, and B, by warding it off from himself, gives it a different direction, in consequence of which it strikes C, in that case, it is wholly the act of A, and B must be considered merely as an involuntary or inanimate object.

tain

tain to himself the sole use and occupation of his soil: every
entry therefore thereon without the owner's leave, and espe-
cially if contrary to his express order, is a trespass or trans-
gression. The Roman laws seem to have made a direct pro-
hibition neceflary, in order to constitute this injury: “ qui ali-
enum fundum ingreditur, poteft a domino, fi is praeviderit,
prohiberi ne ingrediatur b.” But the law of England, justly
considering that much inconvenience may happen to the
owner, before he has an opportunity to forbid the entry, has
carried the point much farther, and has treated every entry
upon another's lands, (unless by the owner's leave, or in
some very particular cases, as an injury or wrong, for satis-
faction of which an action of trespass will lie; but determines
the quantum of that satisfaction, by considering how far the
offence was wilful or inadvertent, and by estimating the va-
lue of the actual damage sustained.

EVERY unwarrantable entry on another's soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to shew cause, quare claufum querentis fregit. For every man's land is in the eye of the law inclosed and set apart from his neighbours : and that either by a visible and material fence, as one field is divided

from another by a hedge; or, by an ideal inviGble boundary, [ 210 ] existing only in the contemplation of law, as when one man's

land adjoins to another's in the same field. And every such
entry or breach of a man's close carries necessarily along with
it fome damage or other: for, if no other special loss can be
alligned, yet still the words of the writ itself specify one ge-
neral damagc, viz. the treading down and bruising his
herbage

One must have a property (either absolute or temporary) in the soil, and actual possession by entry, to be able to maintain an action of{trespass : or at least, it is requisite that the party have a lease and possellion of the vesture and herbage of

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the land d. Thus if a meadow be divided annually among the parishioners by lot, then, after each person's several portion is allotted, they may be respectively capable of maintaining an action for the breach of their several cluses: for they have an exclusive interest and freehold therein for the time, But before entry and actual poffession, one cannot maintain an action of trespass, though he hath the freehold in law'. And therefore an heir before entry cannot have this action against an abator : though a diffeisee might have it against the disseisor, for the injury done by the diffeisin itself, at which time the plaintiff was feised of the land: but he cannot have it for any act done after the diffeisin, until he hath gained possession by re-entry, and then he may well maintain it for the intermediate damage done; for after his re-entry the law, by a kind of jus poftliminii, supposes the freehold to have all along continued in him 5. Neither, by the common law, in case of an intrusion or deforcement, could the party kept out of poffeffion fue the wrongdoer by a mode of redress, which was calculated merely for injuries committed against the land while in the parte dion of the owner. But now by the stao tute 6 Ann. C. 18. if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the deter- [ 211 ] mination of their respective interests, hold over and continue in pofseflion of the lands or tenements, without the consent of the person entitled thereto, they are adjudged to be trespassers; and any reversioner or remainder-man, expectant on any life estate, may once in every year, by motion to the court of chancery, procure the cestuy que vie to be produced by the tenant of the land, or may enter thereon in case of his refusal or wilful negle&t. And by the statutes of 4 Geo. II. c. 28. and 13 Geo. II. c. 19. in cafe after the determination of any term of life, lives, or years, any person shall wilfully hold, over the same, the leffor or reversioner is entitled to recover, by action of debt, either at the rate of double the annual va

Dyer. 285. 2 Roll. Abr. 549. f 2 Rol. Abr. 553. • Cro. Eliz. 421.

I 11 Rep. s.

lue

lue of the premises, in case he himself hath demanded and given notice in writing to the tenant to deliver the possession; or else double the usual rent, in case the notice of quitting proceeds from the tenant himself, having power to determine his lease, and he afterwards neglects to carry that notice into due execution (2).

A man is answerable for not only his own trespass, but that of his cattle also: for, if by his negligent keeping they stray upon the land of another, (and much more if he permits, or drives them on,) and they there tread down his neighbour's herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages. And the law gives the party injured a double remedy in this case; by permitting him to distrein the cattle thus damage-feasant, or doing damage, till the owner shall make him satisfaction; or else by leaving him to the common remedy in foro contentioso, by action. And the action that lies in either of these cases of trespass committed upon another's land either by a man him. self or his cattle, is the action of trespass vi et armis ; whereby a man is called upon to answer, quare vi et armis claufum ipfius A. apud B. fregit, et blada ipfius A. ad valentiam centum solidorum ibidem nuper crescentia cum quibufdam averiis depaftus fuit, conculcavit, et consumpsit, &c. b: for the law always cou

ples the idea of force with that of intrusion upon the property [ 212 ) of another. And herein, if any unwarrantable act of the

defendant or his beasts in coming upon the lands be proved, it is an act of trespass for which the plaintiff must recover some damages ; such however as the jury shall think proper to assess.

In trespasses of a permanent nature, where the injury is continually renewed, (as by spoiling or consuming the herbo age with the defendant’scattle,) the declaration may allege the

Registr. 94.

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